Mak v The Queen
[2015] QDC 188
•31 July 2015
DISTRICT COURT OF QUEENSLAND
CITATION: | Mak v The Queen [2015] QDC 188 |
PARTIES: | TSZ HONG MAK v THE QUEEN |
FILE NO/S: | 1242/12 |
DIVISION: | Criminal |
PROCEEDING: | Section 590AA Criminal Code (Qld) |
ORIGINATING COURT: | District Court at Queensland |
DELIVERED ON: | 31 July 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 22 July 2015 |
JUDGE: | Farr SC DCJ |
ORDER: | 1. The application is dismissed. 2. The Crown is permitted to lead evidence of the police interview at the applicant’s trial. |
CATCHWORDS: | CRIMINAL LAW- Evidence - Application under s 590AA of the Criminal Code to exclude record of interview in the exercise of discretion - where the applicant submitted he was suffering from auditory hallucinations - where it was the applicant’s evidence that he heard a voice which he believed to be the voice of God telling him what to say. Criminal Code 1899 (Qld) Evidence Act 1977 (Qld) R v Arnott [2009] VSCA 299 R v Isequilla [1975] 1 WLR 716 R v Lee (1950) 82 CLR 133 R v Swaffield (1998) 192 CLR 159 R v W [1988] 2 Qd R 308 Sinclair v The King (1946) 73 CLR 316 |
COUNSEL: | D R Gates for the applicant |
SOLICITORS: | Bosscher Lawyers for the applicant |
The application
This is an application pursuant to s 590AA of the Criminal Code (Qld) seeking a pre-trial ruling to exclude an interview, conducted by police officers Senior Constable Grant Hughes and Senior Constable Tony Heptinstall with the applicant on 11 July 2011, in the exercise of the judicial discretion.
The offence
The applicant is charged on the indictment with one count of possession of child exploitation material on 26 June 2011 pursuant to s 228D of the Criminal Code (Qld).
The facts
The allegations are:
(a) on 26 June 2011 the applicant attended the business “Computer Alliance” at Mount Gravatt at about 11.30 a.m. and checked in a black “Soprano” computer tower for repair (with associated hardware) due to it being inoperable;
(b) the applicant had purchased the computer system from that business in 2008;
(c) a computer repair technician, while working on the applicant’s computer, needed to clean a virus from the computer system and so had to check files that might need to be retained during a required repair operation;
(d) the technician opened a folder on the computer and located images alleged to be Child Exploitation Material;
(e) the computer was turned off and isolated, and subsequently the Queensland Police Service were advised;
(f) on 4 July 2011 police attended the business and seized the computer tower and the associated hardware components. A subsequent forensic examination conducted by police found classified Child Exploitation Material on a hard drive of the computer system;
(g) a search warrant was executed at the applicant’s residence on 11 July 2011 (nothing further was located), and the defendant was arrested and transported to police headquarters where an interview was conducted.
The interview
During the interview, the applicant was shown images, that allegedly constitute Child Exploitation Material, that had been located on a hard drive associated with the computer system.
The applicant admitted to previously having seen some of the images and denied ever having seen others.
The applicant admitted to having seen some of the Child Exploitation Material when:
(a) shown by another person who was then using the computer system; and/or
(b) provoked by this other person to look at the pictures or pictures of that kind; and/or
(c) having clicked on an internet link on the desktop of the computer that then took him to a particular website.
The applicant also said that a foreign student (from Hong Kong) who had lived with him for a period of time had been permitted to use that particular computer.
He also admitted during the interview to having used peer-to-peer and file sharing networks when trying to access legal files, DVD films and music.
The basis for the application
The applicant has submitted that at the time of the interview he was suffering from an undiagnosed and untreated mental illness and that it would be unfair to allow the recorded interview to be placed before a jury for that reason.
The argument advanced is that the applicant’s mental health at the time of the interview makes the admissions that were made so inherently unreliable that the interview ought be excluded.
The applicant’s mental health
The matter was first listed for trial in 2013. As a result of concerns regarding his mental health, the applicant was referred by his solicitors to Dr T Mark Schramm, Psychiatrist, for psychiatric interview and report. Dr Schramm interviewed the applicant on 16 May 2013 and provided a report that same date.[1]
[1]Exhibit 1.
It would seem that the primary purpose of referring the applicant to Dr Schramm was to obtain expert opinion as to the applicant’s fitness for trial. Dr Schramm diagnosed the applicant as having long “suffered a serious mental disease featuring symptoms of psychosis and mood which, until the last couple of months prior to him seeing Dr Schramm, had gone essentially untreated.” In the course of that report Dr Schramm also commented upon the applicant’s fitness to be interviewed by police in July 2011. On this topic Dr Schramm relevantly said:
“I believe that he would have been technically psychotic (delusional) and possibly experiencing hallucinations during this interview. I cannot tell you for certain whether or not he was hearing those voices during the interview as he describes (berating him that he had indeed done what police were alleging) but can at least say that it is not unlikely given his description of this phenomenology otherwise and unrelated to that.”[2]
[2]Page 24 of report of Dr Schramm.
The applicant had no reported psychiatric history prior to being charged with the subject offence and all of his symptoms are self‑reported to psychiatrists after that time.
In fact, in August 2011 a psychologist, Tim Baxter, after consulting with the applicant said that he “showed some signs of confusion although he was not psychotic” and then again in March 2013 the applicant was reviewed by a psychiatric registrar whereupon the 2011 diagnosis of “adjustment disorder” was confirmed. Again at that time he was not considered to be showing symptoms of a psychotic illness.[3]
[3]Report of Dr Mark Schramm dated 16 May 2013 p 9.
I note that a “Reference of person’s mental condition to Mental Health Court” was made by the Registrar, Mental Health Court, on 17 April 2014. That reference was the consequence of a medico-legal report provided by a psychiatrist, Dr Balaji Motamarri, dated 10 February 2014 and a supplementary report dated 20 March 2014.[4] Dr Motamarri diagnosed the applicant as suffering from Schizoaffective Disorder. The focus of Dr Motamarri’s reports was the applicant’s fitness for trial, and he made no comment in relation to the applicant’s police interview.
[4]Exhibits 4 and 5.
As a consequence of the referral, the applicant was interviewed by another psychiatrist, Dr Ken Arthur, on 1 August 2014. Dr Arthur provided a report that same day.[5] In that report Dr Arthur concluded:
“Taken at face value I can only conclude that Mr Mak was suffering from active symptoms of chronic paranoid schizophrenia at the time of the alleged offences.”
Once again however Dr Arthur did not comment on the police interview.
[5]Exhibit 6.
The Mental Health Court decided on 1 October 2014 that the applicant:
(a) was not of unsound mind when the alleged offence was committed;
(b) was not fit for trial; and
(c) the unfitness for trial was not of a permanent nature.
A Forensic Order was made on the same day ordering that the applicant be detained for involuntary treatment or care at the Princess Alexandra Hospital.
The applicant has subsequently been found fit for trial.
It follows (as was conceded by both counsel for the applicant and counsel for the respondent) that the only expert who offered any opinion in relation to the applicant’s state of mind at the time of his police interview was Dr Schramm. Relevantly, Dr Schramm notes:
“I would not be concerned that he was anything other than fully aware of his rights and the purpose of the interview.”;
“… not grossly agitated or outwardly panicked”;
“… has the ability to distinguish between what images he is prepared to accept he had seen previously and those he had not, and to make that clear in this interview”; and
“… he makes comment with regards at least one image he ‘should have deleted it’ implying that he knew to have them was wrong.”[6]
[6]Report of Dr Mark Schramm dated 16 May 2013 p 12-14 under heading “Interview with police on 11/7/11”.
Significantly, in this regard Dr Schramm concludes:
“There was nothing I saw or heard to clearly indicate that he was not in a fit state to be interviewed. I note though that he’s since told me that he was hallucinated during the interview.”[7]
[7]Report of Dr Mark Schramm dated 16 May 2013 p 14.
Prior to preparing his report, Dr Schramm had the opportunity to observe the recorded police interview. Significantly, he did not observe anything in the applicant’s words or demeanour during that interview that clearly indicated that the applicant was not in a state fit to be interviewed.
The applicant’s evidence
The applicant gave evidence on this application. In essence, he said that for the majority of the police interview he could hear a voice which he believed to be the voice of God telling him what to say in response to the police officer’s questions. He said that for the majority of the interview “God’s voice” would speak to him after the officer’s question had concluded and he would then simply repeat that which the voice had told him. He said that the voice was quite specific in the answers that he should give to the police including advising which images he should admit to having seen previously and which he should deny ever having seen before, when to say no comment in response to a question, when to admit that a particular user directory was one which he had set up, how files were saved automatically to that directory, and the name of a website that he said he had clicked upon that was in some way related to or contained child exploitation material. These are but examples of some of the assertions he made in evidence.
When questioned as to why he answered some of the police questions immediately upon the cessation of the question and inferentially therefore not waiting to hear what the voice had to say, he said that he could feel “this great power from God, and he was trying to push me to finish the interview quickly”.[8]
[8]Transcript p 1-24 line 10.
His evidence is to be contrasted with that which he told Dr Schramm, that during the interview the voice had merely “berated him that he had indeed done what police were alleging”. In evidence before this court Dr Schramm said:
“All right. And did he give you any more detail about what the voice said to him during the course of that interview or when things were said during the interview?-- Not in great detail. He told me – and I’m going on my report here. He said that during the interview he’d heard an angry voice admonishing him, saying things like: you’ve done it, haven’t you. And he felt that that voice was somehow compelling him, and he said almost convincing him, that he had indeed [indistinct] such things. And so he was concerned that that meant that he may have told police incorrect things.”[9]
[9]Transcript p 1-45 lines 33-39.
It follows of course that there is a significant discrepancy between what the applicant told Dr Schramm the voice had said during the course of that interview when compared to the evidence he gave in this court. I note also that his claim in this court to have “felt the presence of God” is not a claim that he has made to any of the psychiatrists at any prior point in time.
The law
Courts have a discretionary power to exclude admissions, even those that are made voluntarily.[10] The defence bears the onus of establishing that the discretion should be exercised.[11] The applicant has submitted that the evidence of the interview should be excluded on the basis of its admission being unfair in all the circumstances. The focus therefore is on whether it would be unfair to the applicant to allow such evidence to be placed before a jury.[12]
[10]R v W [1988] 2 Qd R 308 at 314 [49]; s 130 of the Evidence Act 1977 (Qld).
[11]R v Lee (1950) 82 CLR 133.
[12]R v Swaffield (1998) 192 CLR 159 at 189.
In Sinclair v The King,[13] Latham CJ said:
“The real question is whether the evidence shows that when Sinclair made his statement to Graham a few days after the murder and later in March 1936 to the police he was in such a mental condition that in fairness to him no attention ought to be paid to what he said.”
[13](1946) 73 CLR 316 at p 323.
Dixon J said in respect of the position of the appellant in that matter at p 337-338:
“Boyd Sinclair’s mental state did not disable him from observing, appreciating, recollecting and recounting real occurrences, events or experiences. The fact that his mind, in its schizophrenic state, may have been stored with imaginary episodes and with the memory of unreal dramatic situations would, of course, make it impossible to place reliance upon his confessional statements as intrinsically likely to be true. The tendency of his mental disorder to dramatic and histrionic assertion formed another difficulty in attaching an inherent value to what he said. But it is to be noticed that his condition did no more than make it possible that the source of any confessional statement made, lay in these tendencies. His was not a case in which it could be said that the higher probability was in favour of his confession of such a crime being the product of imagination. Reason suggests that in such circumstances it is for the tribunal of fact to ascertain or verify the factual basis of the statements of a man in such a mental condition by comparing their contents with the independent proofs of the circumstances and occurrences to which they relate. It happens that external facts independently proved do supply many reasons for supposing that the confessional statements made by Boyd Sinclair were substantially correct. Though this consideration is not relevant to the question of the legal admissibility of such statements, it provides an example of the inconvenience or undesirability of a rule of rigid exclusion.”
The Court of Appeal in Western Australia considered the issue of the admissibility of confessional statements in State of Western Australia v Silich[14], where the confessionalist had participated in a police interview while affected by alcohol. Martin CJ, with whom Hall J agreed, said:
“… In Sinclair v The King … Dixon J observed that mental impairment by the maker of a statement against interest did not necessarily mean that the statement was inadmissible in criminal proceedings brought against the maker of the statement, even if, as a consequence of the mental impairment, the maker of the statement was ‘confusing the products of his disordered imagination or fancy with fact’ at the time of making the statement. The statement will be admissible if the mental state of the accused did not ‘disable him from observing, appreciating, recollecting and recounting real occurrences, events or experiences’. … Accordingly, a statement made against interest will be admissible if, despite mental impairment, the accused was capable of giving a true account of events.”
[14][2011] WASCA 135 at [51]-[54].
In R v Isequilla[15], the Court held that it was impossible to say that at the time of the confession the appellant’s mental state was such that his utterances were completely unreliable or that his mind was so unbalanced that it would be unsafe to rely upon them.
[15][1975] 1 WLR 716.
Finally, in R v Arnott[16], Ashley JA said:
“The test in Sinclair has been criticised, but not by the High Court. It was affirmed in Jackson v The Queen and again by Callinan, Heydon and Crennan JJ in Tofilau. So, unless and until the High Court says otherwise, it remains the law. Accordingly, it seems to me that the only permissible basis for exclusion of a confession on the ground of mental disability is the sort of mental incompetence adumbrated in Sinclair or, in a case of mental disability falling short of the gravity contemplated in Sinclair, perhaps in the exercise of the fairness discretion.” (citations omitted)
[16][2009] VSCA 299 at [24].
Submissions
The applicant has submitted that his case can be distinguished from that in Sinclair v The King because statements made by Sinclair of external facts could be independently proved, giving reason to conclude that the statements were “substantially correct”. In this case, the applicant submits that at the time of the police interview, he was suffering from auditory hallucinations which instructed him as to what answers he should give to police questions.
It is submitted that his answers are therefore inherently unreliable because his mind was so unbalanced or disordered at the time that it would be wholly unsafe to act upon whatever he said.
The respondent has submitted that the Court cannot be satisfied that the applicant was suffering any auditory hallucinations, or other psychotic symptoms at the time of the police interview.
The respondent further submits that even if so satisfied, the Court cannot be satisfied that at the time of the confession the applicant’s mental state was such that his utterances were completely unreliable or that his mind was so unbalanced that it would be unsafe to rely upon them and thus make it unfair to the applicant for them to be led at trial.
Conclusion
Dr Schramm has provided the only relevant expert opinion regarding the appellant’s state of mind at the time of his police interview. Whilst he acknowledged that it was possible that the appellant was suffering from hallucinations and, may have been delusional, he can place it no higher than that. I note that Dr Schramm had been provided with all relevant material prior to his interview with the applicant to enable him to properly form a learned opinion.
Therefore, the only additional evidence about which Dr Schramm has no knowledge is the evidence that the applicant gave before this Court on this application. As I have already indicated, the applicant’s evidence before this Court was spectacularly inconsistent in relation to what the voice allegedly said to him during the course of the police interview when compared to that which he had told Dr Schramm. That inconsistency significantly detracts from the applicant’s credibility.
Furthermore, I found the applicant to be evasive and, at times, deliberately unresponsive in cross-examination. He was a most unimpressive witness and I am unable to place any weight upon his evidence relevant to the issue at hand.
There is also some independent evidence in this matter which tends to suggest that the admissions made by the appellant were substantially correct. That evidence being:
a) the fact that child exploitation material was found on the hard drive of a computer that was located at the address at which the applicant was living; and
b) the fact that on that same hard drive, in the same program, photographs of the applicant, his ex-girlfriend and her mother were located.[17]
[17]Record of interview dated 11 July 2011.
Upon viewing the recording of the police interview I also note that at no time did the applicant appear to be distracted or suffering from some type of hallucination. On many occasions he answered police questions with no discernable gap between question and answer, which is quite inconsistent with his evidence that, on many occasions, he had to wait to either hear if the voice was going to speak to him or he had to wait for the voice to finish speaking before he would respond. Importantly, I note that Dr Schramm upon watching the recording of the interview was also unable to discern any obvious difficulties that the applicant may have had during it.
In short, throughout the interview the applicant gave timely, appropriate, responsive and coherent answers to questions and was able to articulate reasons for particular conduct. At times his answers were incriminatory whilst at others they were exculpatory and he was able to offer coherent and additional information spontaneously.[18]
[18]Transcript of police interview (Exhibit 2) p 17 lines 55-56, and p 18 line 41 to p 19 line 20.
Accordingly, I am not satisfied on balance of probabilities that the mental state of the applicant was, at the time of his interview, such that it disabled him from observing, appreciating, recollecting and recounting real occurrences, event or experiences. I am not satisfied therefore that the applicant was incapable of giving a true account of events nor that his mind was so unbalanced that it would be unsafe to rely upon the things he said.
Order
1. The application is dismissed.
2. The Crown is permitted to lead evidence of the police interview at the applicant’s trial.
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